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Family Court Should Not Have Terminated Parental Rights (After an Alleged Violation of a Drug-Treatment Condition of a Suspended Judgment) Without Holding the Necessary Hearings

The Second Department sent the matter back to Family Court for a hearing on whether the parents (after a finding of permanent neglect) violated the drug-treatment condition of a suspended judgment, and, if warranted, a new dispositional hearing with respect to the termination of parental rights. Family Court, based solely on documents from DSS, determined the parents had violated the drug-treatment condition of the suspended judgment, and, on that ground, had terminated the parents’ parental rights without any hearings:

Upon a finding of permanent neglect, the Family Court may suspend judgment, “during which time the parents must comply with terms and conditions that relate to the adjudicated acts or omissions of the parents which led to the finding of [permanent] neglect” (…see Family Ct Act §§ 631[b]; 633). By enacting Family Court Act §§ 631(b) and 633, the Legislature vested the Family Court with discretion to give a parent of a permanently neglected child a second chance before terminating the parent’s parental rights … . If a parent fails to comply with the terms and conditions of a suspended judgment, “a motion or order to show cause seeking the revocation of the order” suspending judgment “may be filed,” and “if, after a hearing or upon the respondent’s admission, the court is satisfied that the allegations of the motion or order to show cause have been established and upon a determination of the child’s best interests, the court may modify, revise or revoke the order of suspended judgment” (22 NYCRR 205.50[d][1], [5] [emphasis added]). “The Family Court may revoke a suspended judgment after a violation hearing if it finds, upon a preponderance of the evidence, that the parent failed to comply with one or more of its conditions” … . * * *

…[E]ven if the Family Court had conducted a hearing on the DSS’s motion to hold the parents in violation of the drug-treatment condition, and had determined that the violations had been established by a preponderance of the evidence, the Family Court was required to conduct an inquiry into the children’s best interests before terminating the parents’ parental rights … . Although a separate dispositional hearing is not always required in a proceeding to enforce a suspended judgment where the violation hearing or prior proceedings established that the court was aware of and considered the children’s best interests …, this is not such a case … . The Family Court conducted no hearing at all on the motion to hold the parents in violation of the drug-treatment condition, and the record does not otherwise show that the Family Court made an inquiry into or adequately considered the best interests of the children in terminating the parents’ parental rights.  Matter of Timmia S, 2013 NY Slip Op 07739, 2nd Dept 11-20-13

 

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